People v. Floyd
Opinions
[702] Opinion
BURKE, J.
A jury found Barry Floyd and Johnny Milton guilty of first degree robbery (Pen. Code, § 211) and first degree murder (Pen Code, § 187) and sentenced them to death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)
On January 10, 1967, about 1 p.m., a Los Angeles Rapid Transit District busdriver, named Hartzel, was robbed, shot and killed by two male passengers. Two other passengers identified Floyd and one passenger identified Milton as the robbers; Floyd was identified as the triggerman. An eyewitness outside the bus observed Floyd and Milton fleeing; he identified Milton as one of those fleeing the bus.
A fingerprint of Floyd was found on the bus. Miscellaneous change, but no currency, was found on and near the bus. Twenty-one one-dollar bills, folded individually, and a numbered transfer from the busdriver’s transfer book were found in Floyd’s shirt when he was arrested on the day of the robbery. Thirty one-dollar bills and a five-dollar bill, folded individually, were found in Milton’s pants pocket after he was arrested on the day of the robbery. A later search, authorized by warrant, of the apartment at which Milton and Floyd were arrested yielded a gun, which, according to expert ballistics testimony, was the murder weapon, and a numbered transfer, one number lower than the transfer found on Floyd and also' from the busdriver’s transfer book. Both the gun and the transfer were found in the same place in the apartment.
Floyd did not testify at either the guilt or penalty trials. Milton testified at both trials. Milton’s defense was that of alibi; he testified that he had been at his half-brother’s apartment (where he and Floyd were arrested) since 11 or 11:30 a.m.; his testimony was corroborated by testimony of his half-brother, a woman who had been the common law wife of his half-brother, and his younger sister.
Right to Counsel
Milton contends that he was denied his right to represent himself, or, in the alternative, denied his right to effective counsel because the trial court refused to appoint another attorney despite defendant’s demands for another attorney. Neither contention has merit.
A “defendant in a criminal case has the constitutional right to waive counsel and represent himself if he knowingly and intelligently elects to do so. [Citations.]” (E.g., People v. Maddox, 67 Cal.2d 647, 651 [63 Cal.Rptr. 371, 433 P.2d 163].) However, the decision whether the defendant is capable of making a knowing and intelligent election is a dis[703] cretionary matter, which, absent a showing of abuse, will not be disturbed on appeal. (People v. Carter, 66 Cal.2d 666, 672 [58 Cal.Rptr. 614, 427 P.2d 214]; People v. Shroyer, 203 Cal.App.2d 478, 482-483 [21 Cal.Rptr. 460].)
Although the defendant’s right to represent himself cannot be denied simply because he is unable to “demonstrate either the acumen or the learning of a skilled lawyer” (People v. Harmon, 54 Cal.2d 9, 15 [4 Cal.Rptr. 161, 351 P.2d 329]; People v. Linden, 52 Cal.2d 1, 18 [338 P.2d 397]; see also, People v. Addison, 256 Cal.App.2d 18, 24 [63 Cal.Rptr. 626]), a defendant may waive counsel and choose to represent himself only if the defendant has an intelligent conception of the consequences of his act (People v. Carter, supra, 66 Cal.2d 666, 670) and understands the nature of the offense, the available pleas and defenses, and the possible punishments (In re Johnson, 62 Cal.2d 325, 335 [42 Cal.Rptr. 228, 398 P.2d 420]).
Milton contends that the questions asked by the trial court, in response to his request to represent himself, and the court’s refusal to allow him to do so violated the rule that a defendant need not have the knowledge or learning of an attorney.
The particular questions quoted by Milton, without more, may not have justified denying him his right to represent himself. But the questions cannot be isolated from the answers, nor from other factors of which the court was aware.1
[704] The record makes clear that by May 22, when the motion was made, the court had adequate opportunity to observe and listen to Milton, and adequate grounds to decide that he could not intelligently waive the right to counsel nor represent himself.
First, the charges against Milton were serious, murder and robbery, with the prosecution seeking the death penalty. Second, the court had been requested to appoint a psychiatrist to examine Milton, and a plea of not guilty by reason of insanity, although later withdrawn, had been entered. Third, Milton was only 21 years of age at the time of trial, had no prior adult record of convictions, and had a 10th or 11th grade education.
Moreover, Milton’s conduct in court after the court denied his motion to proceed in propria persona makes clear that he was incapable of defending himself. Had a defendant like Milton represented himself in a death penalty case, this court would have been required to reverse any conviction resulting from those proceedings, based on a fundamental denial of due process. There was no error in refusing to allow Milton to represent himself.
Milton contends that because of an alleged conflict between himself and his court-appointed counsel, he was entitled to have another attorney appointed.2 “[T]here is no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant’s whims.” (People v. Nailor, 240 Cal.App.2d 489, 494 [49 Cal.Rptr. 616], cert. den., 385 U.S. 1030 [17 L.Ed.2d 678, 87 S.Ct. 763]; see also People v. Mattson, 51 Cal.2d 777, 793 [336 P.2d 937]; In re Atchley, 48 Cal.2d 408, 418-419 [310 P.2d 15]; In re Luna, 257 Cal.App.2d 754, 757 [65 Cal.Rptr. 121].) Further, it is well established that an attorney representing a criminal defendant has the power to control the court proceedings. (See People v. Hill, 67 Cal.2d 105, 114-115 [60 Cal.Rptr. 234, 429 P.2d 586], cert. den. 389 U.S. 1009 [19 L.Ed.2d 607, 88 S.Ct. 572]; People v. Foster, 67 Cal.2d 604, 606 [63 Cal.Rptr. 288, 432 P.2d 976]; People v. Darling, 58 Cal.2d 15, 19 [22 Cal.Rptr. 484, 372 P.2d 316]; People v. Mattson, supra, 51 Cal.2d 777, 789; People v. Merkouris, 46 Cal.2d 540, 554-555 [297 P.2d 999].)
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[702] Opinion
BURKE, J.
A jury found Barry Floyd and Johnny Milton guilty of first degree robbery (Pen. Code, § 211) and first degree murder (Pen Code, § 187) and sentenced them to death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)
On January 10, 1967, about 1 p.m., a Los Angeles Rapid Transit District busdriver, named Hartzel, was robbed, shot and killed by two male passengers. Two other passengers identified Floyd and one passenger identified Milton as the robbers; Floyd was identified as the triggerman. An eyewitness outside the bus observed Floyd and Milton fleeing; he identified Milton as one of those fleeing the bus.
A fingerprint of Floyd was found on the bus. Miscellaneous change, but no currency, was found on and near the bus. Twenty-one one-dollar bills, folded individually, and a numbered transfer from the busdriver’s transfer book were found in Floyd’s shirt when he was arrested on the day of the robbery. Thirty one-dollar bills and a five-dollar bill, folded individually, were found in Milton’s pants pocket after he was arrested on the day of the robbery. A later search, authorized by warrant, of the apartment at which Milton and Floyd were arrested yielded a gun, which, according to expert ballistics testimony, was the murder weapon, and a numbered transfer, one number lower than the transfer found on Floyd and also' from the busdriver’s transfer book. Both the gun and the transfer were found in the same place in the apartment.
Floyd did not testify at either the guilt or penalty trials. Milton testified at both trials. Milton’s defense was that of alibi; he testified that he had been at his half-brother’s apartment (where he and Floyd were arrested) since 11 or 11:30 a.m.; his testimony was corroborated by testimony of his half-brother, a woman who had been the common law wife of his half-brother, and his younger sister.
Right to Counsel
Milton contends that he was denied his right to represent himself, or, in the alternative, denied his right to effective counsel because the trial court refused to appoint another attorney despite defendant’s demands for another attorney. Neither contention has merit.
A “defendant in a criminal case has the constitutional right to waive counsel and represent himself if he knowingly and intelligently elects to do so. [Citations.]” (E.g., People v. Maddox, 67 Cal.2d 647, 651 [63 Cal.Rptr. 371, 433 P.2d 163].) However, the decision whether the defendant is capable of making a knowing and intelligent election is a dis[703] cretionary matter, which, absent a showing of abuse, will not be disturbed on appeal. (People v. Carter, 66 Cal.2d 666, 672 [58 Cal.Rptr. 614, 427 P.2d 214]; People v. Shroyer, 203 Cal.App.2d 478, 482-483 [21 Cal.Rptr. 460].)
Although the defendant’s right to represent himself cannot be denied simply because he is unable to “demonstrate either the acumen or the learning of a skilled lawyer” (People v. Harmon, 54 Cal.2d 9, 15 [4 Cal.Rptr. 161, 351 P.2d 329]; People v. Linden, 52 Cal.2d 1, 18 [338 P.2d 397]; see also, People v. Addison, 256 Cal.App.2d 18, 24 [63 Cal.Rptr. 626]), a defendant may waive counsel and choose to represent himself only if the defendant has an intelligent conception of the consequences of his act (People v. Carter, supra, 66 Cal.2d 666, 670) and understands the nature of the offense, the available pleas and defenses, and the possible punishments (In re Johnson, 62 Cal.2d 325, 335 [42 Cal.Rptr. 228, 398 P.2d 420]).
Milton contends that the questions asked by the trial court, in response to his request to represent himself, and the court’s refusal to allow him to do so violated the rule that a defendant need not have the knowledge or learning of an attorney.
The particular questions quoted by Milton, without more, may not have justified denying him his right to represent himself. But the questions cannot be isolated from the answers, nor from other factors of which the court was aware.1
[704] The record makes clear that by May 22, when the motion was made, the court had adequate opportunity to observe and listen to Milton, and adequate grounds to decide that he could not intelligently waive the right to counsel nor represent himself.
First, the charges against Milton were serious, murder and robbery, with the prosecution seeking the death penalty. Second, the court had been requested to appoint a psychiatrist to examine Milton, and a plea of not guilty by reason of insanity, although later withdrawn, had been entered. Third, Milton was only 21 years of age at the time of trial, had no prior adult record of convictions, and had a 10th or 11th grade education.
Moreover, Milton’s conduct in court after the court denied his motion to proceed in propria persona makes clear that he was incapable of defending himself. Had a defendant like Milton represented himself in a death penalty case, this court would have been required to reverse any conviction resulting from those proceedings, based on a fundamental denial of due process. There was no error in refusing to allow Milton to represent himself.
Milton contends that because of an alleged conflict between himself and his court-appointed counsel, he was entitled to have another attorney appointed.2 “[T]here is no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant’s whims.” (People v. Nailor, 240 Cal.App.2d 489, 494 [49 Cal.Rptr. 616], cert. den., 385 U.S. 1030 [17 L.Ed.2d 678, 87 S.Ct. 763]; see also People v. Mattson, 51 Cal.2d 777, 793 [336 P.2d 937]; In re Atchley, 48 Cal.2d 408, 418-419 [310 P.2d 15]; In re Luna, 257 Cal.App.2d 754, 757 [65 Cal.Rptr. 121].) Further, it is well established that an attorney representing a criminal defendant has the power to control the court proceedings. (See People v. Hill, 67 Cal.2d 105, 114-115 [60 Cal.Rptr. 234, 429 P.2d 586], cert. den. 389 U.S. 1009 [19 L.Ed.2d 607, 88 S.Ct. 572]; People v. Foster, 67 Cal.2d 604, 606 [63 Cal.Rptr. 288, 432 P.2d 976]; People v. Darling, 58 Cal.2d 15, 19 [22 Cal.Rptr. 484, 372 P.2d 316]; People v. Mattson, supra, 51 Cal.2d 777, 789; People v. Merkouris, 46 Cal.2d 540, 554-555 [297 P.2d 999].)
Milton’s reliance on People v. Moss, 253 Cal.App.2d 248, 250 [61 Cal.Rptr. 107], in which the defendant and his court-appointed [705] attorney had reached an “impasse on a crucial issue” is misplaced. The court in Moss stated: “We believe the basic right to representation by counsel . . . encompasses the right to the appointment of different counsel when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic.” (Id., at p. 251.) We need not decide whether the rule proposed in Moss correctly states the law as to right to counsel (see People v. Maddox, supra, 67 Cal.2d 647, 654, fn. 2), since Milton’s repeated requests that a different attorney be appointed were premised on a lack of confidence in his appointed counsel not on a disagreement as to trial tactics.
The record makes crystal clear that the only substantial “conflict” between Milton and his attorney was that Milton refused to cooperate in order to permit his attorney to prepare a defense consistent with a not guilty plea.
Change of Venue
Both Floyd and Milton contend that the trial court’s refusal to grant a change of venue deprived them of due process, because defendants were tried “in a county inflamed with passion and prejudice against individuals accused of the type of crimes charged . . . .” The contention is based solely on public concern for and publicity concerning “the increasing number of crimes being committed in the South Central part of the City against persons involved in various service industries.”
“A motion for change of venue . . . shall be granted whenever it is determined that because of the dissemination of potentionally prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.” (Maine v. Superior Court, 68 Cal.2d 375, 383 [66 Cal.Rptr. 724, 438 P.2d 372].) Crime is always a matter for public concern, and if the fact that the public has expressed concern as to a rising crime rate or certain classes of crime meant that a fair trial could not be had, it is doubtful whether a fair trial could ever be had. Such general concerns are in large part balanced by the community’s desire to convict the true wrongdoer and acquit the innocent, and the general concern to reduce crime and apprehend criminals does not furnish the basis for a change of venue.
In all of the cases on which defendants rely, the determination that a fair trial could not be had was based on a showing of prejudice against the particular defendant or defendants. (Sheppard v. Maxwell (1966) 384 U.S. 333, 339-342 [16 L.Ed.2d 600, 606-608, 86 S.Ct. 1507]; Maine v. Superior Court, supra, 68 Cal.2d 375, 385-386; People v. McKay, 37 Cal.2d 792, 794 [236 P.2d 145]; People v. Suesser, 132 Cal. 631, 633-634 [64 P. 1095]; People v. Yoakum, 53 Cal. 566, 569-570; People v. Lee, 5 Cal. 353, 354.) Defendants, however, cite no pub[706] licity whatsoever concerning their crime, or arrest, or trial; they concede that only two jurors had even heard of the crime involving Floyd and Milton.
Right to Speedy Trial
Floyd and Milton claim that they were deprived of their right to a speedy trial, as guaranteed by the United States and California Constitutions. The contention is without merit.
Defendants were arrested on January 10, 1967, for the robbery and murder occurring on that same day. A preliminary hearing was held on January 24, and defendants were bound over for trial in superior court. Floyd pleaded not guilty in February. After separate counsel was appointed for Milton on February 21 (ante, fn. 2), he pleaded not guilty on March 6. Trial was set for March 27. On motion of both defendants’ counsel, trial was continued until May 22. The trial was again continued until July 6, over Milton’s objections but on motion of his defense counsel, because Milton refused to discuss the case with his attorney who, accordingly, was not prepared for trial. The matter trailed until July 7, when Milton again refused to waive time, and petitioned “for a change of Court on the ground of prejudice.” Trial counsel again stated that Milton refused to cooperate, the trial was put over until July 18, when the challenged judge agreed to transfer the case to another judge. On that same day, both defendants’ counsel joined in a motion to dismiss the case, on grounds that the defendants had been deprived of a speedy trial; the motion was denied on July 19. With both defendants personally consenting, the matter was put over until July 28, so that counsel could file a petition for writ of prohibition with the Court of Appeal. The Court of Appeal then stayed the matter until August 18, pending decision on the merits.
On August 16, the People obtained a grand jury indictment; on August 18, the information was dismissed on motion of the prosecution; on August 22, the Court of Appeal dismissed the writ of prohibition as moot. Thereafter, various continuances were granted, on motion of defendants, to seek writs of prohibition from the Court of Appeal and this court, which were denied. The matter finally came to trial on December 21, 1967.
All of the continuances after the filing of the indictment were with the consent of Milton and his attorney. (People v. Tahtinen, 50 Cal.2d 127, 131 [323 P.2d 442].) All of the earlier continuances were with the consent of counsel although Milton objected to the continuances from May 22 through July 18. Even assuming that the attorney’s consent to the continuances over the client’s objection would not constitute a waiver of the right to speedy trial (see People v. Addison, supra, 256 Cal.App.2d [707]*70718, 22, 26), Milton’s claim of a denial of his right to a speedy trial must be rejected for another reason.
Although a criminal defendant may not be deprived of a speedy trial because the prosecution—or the defense—is lazy or indifferent, or because the prosecution seeks to harass the defendant rather than bring him.^fairly to justice, a criminal defendant may not juggle his constitutional rights in an attempt to evade prosecution. He may not demand a speedy trial and demand adequate representation, and, by the simple expedient of refusing to cooperate with his attorney, force a trial court to choose between the two demands, in the hope that a reviewing court will find that the trial court has made the wrong choice. “We cannot tolerate such bad faith and we are not constitutionally required to do so. [Citations.]” (People v. Smyers, 261 Cal.App.2d 690, 700 [68 Cal.Rptr. 194].)
In the instant case, the continuances granted over Milton’s objections were requested by the attorney and granted by the trial court because of Milton’s obdurateness in refusing to talk to his attorney. Milton’s refusal to cooperate combined with his insistence on an immediate trial were properly characterized by the trial court as “a very neat device for anybody to escape prosecution.” The device should not be permitted to succeed.3
Felony-Murder Rule
Milton contends that an unarmed accomplice to a killing occurring in the perpetration of a robbery should not “per se” be deemed to be guilty of first degree murder. He asks us to judicially invalidate section 31 of the Penal Code, which defines “principals” to a crime as including all who “directly commit the act . . . or aid and abet in its commission, . . .” to overrule People v. Cabaltero, 31 Cal.App.2d 52, 56-57 [87 P.2d 364], which held that the felony-murder rule applies to all participants in one of the enumerated felonies under section 189 of the Penal Code, and People v. Washington, 62 Cal.2d 777, 782-783 [44 Cal.Rptr. 442, 402 P.2d 130], which reiterated the Cabaltero rule. The suggestion is without merit.
Milton relies on the 1949 amendment to section 1203 of the Penal Code, which deals with the granting of probation. Before the 1949 amendment, probation could not be granted “to one who, although not personally armed with a deadly weapon, acted with a companion who was so armed. [Cita[708] tions.]” (People v. Perkins, 37 Cal.2d 62, 63 [230 P.2d 353].) In 1949, the Legislature amended the words “who . . . was armed” to “who . . . was himself armed . . . .” (Stats. 1949, ch. 1329, § 1, at pp. 2324, 2325.)
Perkins construed the amendment to grant the trial court discretion to order probation where the participant in the crime seeking probation was not himself armed. (37 Cal.2d at p. 64.) But Perkins made clear that the amendment to section 1203 did not change the definition of the substantive crime involved: “It should be noted that . . . the fact that defendant Perkins was not ‘himself armed with a ‘dangerous or deadly weapon’ does not make him any the less, in a legal sense, guilty of robbery in the first degree, which is defined by section 21 la of the Penal Code. Perkins is guilty of first degree robbery, regardless of the precise acts which he committed personally, because he aided and abetted in its commission (Pen. Code, § 31). Indeed it was by analogy to this rule, which makes all willful participants in a crime guilty as principals, that it was originally held that a defendant in the situation of Perkins could not have probation. . . .” (37 Cal.2d at pp. 64-65; fns. omitted; see also, People v. Barclay, 40 Cal.2d 146, 155-156 [252 P.2d 321].)
Milton contends nonetheless that the application of the felony-murder rule to unarmed accomplices conflicts with the legislative policy underlying section 1203 of the Penal Code. That contention is untenable. The purpose .of the 1949 amendment was not to discourage felons from arming themselves but to extend the discretion of the trial court in determining when probation is appropriate. That purpose is made clear by subsequent amendments to section 1203.
In 1957, section 1203 was amended to allow the trial court “in unusual cases” to grant probation to a person convicted of robbery who was himself armed. (Stats. 1957, ch. 2054, § 1, at pp. 3648, 3649.) In 1965, section 1203 was again amended to allow the trial court “In unusual cases . . . with the concurrence of the district attorney” to grant probation to persons convicted of murder who were themselves armed. (Stats. 1965, ch. 1720, § 1, at pp. 3867, 3870.) Thus, the distinction between armed and unarmed felons, and “ordinary” felonies and murder, rather than being enhanced, as defendant would find, has been diminished, for purposes of the trial court’s discretion in deciding whether probation would be awarded.
Finally, the conclusive presumption of malice as to Milton is not “needlessly harsh.” Milton contends that “he neither committed nor encouraged commission of a homicide.” That contention baldly misstates the record; Floyd held the gun, and Milton struggled with the driver for the money. [709] Assuming that a case might exist in which the accomplice strove to his utmost to engage in a simple second degree robbery, this is not the case.
Effective Assistance of Counsel
Milton contends that he was deprived of effective assistance of counsel, and that the proceedings were reduced to a farce and a sham, because his trial attorney (1) called only three of five possible alibi witnesses, and did not interview those not called; (2) did not move to exclude in-court identifications of Milton at the guilt trial on grounds that the identifications were a product of an unfair pretrial confrontation; (3) did not move to exclude in-court identifications of Milton at the penalty trial, for the same reasons. None of these contentions has merit.
In People v. Ibarra, 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487], we held that it is “counsel’s duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled. [Citations.]” In Ibarra, the record made clear that the attorney did not know the “commonplace” rule concerning standing to challenge an illegal search and seizure. (60 Cal.2d at p. 465.) Ibarra emphasized that “It must appear that counsel’s lack of diligence or competence reduced the trial to a ‘farce or a sham.’ ” (60 Cal.2d at p. 464.)
It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively. (E.g., People v. Reeves, 64 Cal.2d 766, 773 [51 Cal.Rptr. 691, 415 P.2d 35], cert. den., 385 U.S. 952 [17 L.Ed.2d 229, 87 S.Ct. 332]; People v. Brooks, 64 Cal.2d 130, 140 [48 Cal.Rptr. 879, 410 P.2d 383]; People v. Perry, 271 Cal.App.2d 84, 111 [76 Cal.Rptr. 725]; People v. Ferguson, 255 Cal.App.2d 493, 496 [63 Cal.Rptr. 93].)
Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.
Milton’s sole defense was that of alibi. His counsel on appeal contends that the defense was reduced to a farce and a sham because Milton’s attorney at the trial called “only” three of five possible alibi witnesses. However, the choice of which, and how many, of potential witnesses is precisely the type of choice which should not be subject to review by an appellate court. Indeed, there is not even any basis for accusing Milton’s counsel of poor tactics in his choice of witnesses: He [710] called Milton’s half-brother and sister, and a woman who formerly lived with the half-brother, who all supported the alibi defense. None of these witnesses was impeached on the grounds of prior criminal records. The half-brother also provided an explanation for Milton’s possession of the currency in small denominations. The attorney did not call a cousin, Richard Myles, who was imprisoned at the time of trial, and who (because he was the same height as Milton) the defense attempted to insinuate might be the real culprit. He did not call a woman, Carolyn Billie Whitley, whose name Milton could not remember at his trial.
Milton complains that the trial attorney did not interview the two prospective witnesses. We know of no rule which requires an attorney to interview all prospective witnesses, particularly when, as here, one of the prospective witnesses was prima facie undesirable.
To support the allegation that Milton’s attorney was “incompetent,” counsel on appeal have submitted affidavits from the witnesses who were not called, stating they were not interviewed and request that we take further evidence on the matter. Our function on appeal is limited to a consideration of matters contained in the record of the trial proceedings. (People v. Merriam, 66 Cal.2d 390, 396-397 [58 Cal.Rptr. 1, 426 P.2d 161].) In any event, there is nothing in Milton’s allegations of incompetence to justify our expanding a more than adequate record. The motion is denied.
One of the passengers on the bus who identified Floyd and Milton at the trial was a Mrs. Foster, who sat opposite defendants on the bus for 25 to 30 minutes, before they committed the robbery and murder. She described the defendants as follows: Floyd was wearing light green pants, a long-sleeved white dress shirt, high-topped light-brown shoes, glasses and a hat, and was considerably shorter and heavier than Milton. Milton was wearing dark pants, black shoes, and a “print-type” shirt; the right cuff on Milton’s pants had fallen down. In court, she estimated that Floyd was about 5 feet, 7 inches tall, and that Milton was about 6 feet, 1 or 2 inches tall. She identified both Floyd and Milton in a lineup conducted at the police station the evening of the same day the defendants were arrested.
Charles McAfee, who was stopped in his car behind the bus, identified Milton as one of the men who ran away from the bus after the robbery. He furnished the police with a detailed description of Floyd and Milton, although at the trial he testified only that Floyd was about 5 feet 6 or 7 inches tall, and weighed about 160 pounds, and that Milton was around 6 feet 6 inches tall, weighed about 190 pounds, and had an “orangish [711] brown” sweater or light shirt. McAfee indentified Milton at the police station shortly after Milton was arrested.
Milton claims that the pretrial identification by Mr. McAfee and Mrs. Foster was impermissibly suggestive and deprived him of due process of law, and that the failure of Milton’s counsel to demand a hearing outside the presence of the jury on the issue of improper pretrial identification reduced the proceedings to a sham and a farce.
United States v. Wade (1967) 388 U.S. 218, 237 [18 L.Ed.2d 1149, 1162, 87 S.Ct. 1926], held that a defendant who is required to appear in a lineup for purposes of identification by a witness has a right, absent knowledgeable waiver, to have counsel present at the lineup. If this right is violated, the government must then be allowed “the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” (388 U.S. at p. 240 [18 L.Ed.2d at p. 1164].) Gilbert v. California (1967) 388 U.S. 263, 272 [18 L.Ed.2d 1178, 1186, 87 S.Ct. 1951], made clear that where a defendant is placed in a lineup without counsel being present or waived, it is constitutional error to admit the “in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin . . . .”
Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967], applied the lineup rules to individual confrontations of the defendant and witness (388 U.S. at p. 295 [18 L.Ed.2d at p. 1202]), and held that the rules of Wade and Gilbert must be applied only to confrontations occurring after the date of those opinions (id., at p. 296 [18 L.Ed.2d at p. 1203]). The majority of this court adopted the same rule in People v. Feggans, 67 Cal.2d 444, 448 [62 Cal.Rptr. 419, 432 P.2d 21]. However, Stovall also held that a pre-Wade or pre-Gilbert lineup could be so “unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny a defendant due process of law. (388 U.S. at p. 302 [18 L.Ed.2d at p. 1206].) Whether a confrontation was so unfairly suggestive “depends on the totality of the circumstances surrounding it, ...” (Id.)
Thus, unlike cases to which Wade and Gilbert apply, in which the mere fact of the confrontation having occurred without an attorney being present or the right to an attorney having been waived places the burden on the prosecution to show that the in-court identification was not tainted, in cases where Wade and Gilbert do not apply, before the defendant “may invoke an exclusionary concept he must demonstrate that the lineup ‘resulted in such unfairness that it infringed his right to due process of law.’ (Stovall v. Denno (1967) 388 U.S. 293, 299 . . . .)” (People v. Caruso, 68 Cal.2d 183, 184 [65 Cal.Rptr. 336, 436 P.2d 336]; [712] see also, People v. Burns, 270 Cal.App.2d 238, 244 [75 Cal.Rptr. 688]; People v. Romero, 263 Cal.App.2d 590, 593 [69 Cal.Rptr. 748].)
Where a defendant does establish that an identification has been “unnecessarily suggestive and conducive to irreparable mistaken identification” (Stovall v. Denno, supra, 388 U.S. 293, 302 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967]), the prosecution must then, as in cases to which Wade and Gilbert apply, “on voir dire show by clear and convincing proof that the in-court identifications were based upon observations of the accused at the scene of the robbery.” (People v. Caruso, supra, 68 Cal.2d 183, 189.)
There is, however, nothing in the language of Wade, Gilbert, Stovall, Caruso, or any of the cases following that suggests that a demand for a voir dire hearing on the issue is required or appropriate regardless of the circumstances of the lineup. A hearing outside the jury’s presence is required only where there is some factual conflict concerning the fairness of the lineup. (People v. Burns, supra, 270 Cal.App.2d 238, 244-245; People v. Douglas, 259 Cal.App.2d 694, 697-698 [66 Cal.Rptr. 492].) There is no factual conflict in the instant case as to the composition of the lineup or the circumstances of the identification.
Nor was the pretrial identification of Milton unfair. Mrs. Foster was asked to identify Milton and Floyd out of a lineup consisting of six young male Negroes, including defendants. Two of the men were apparently intended to be matched to Floyd, and the propriety of the identification of Floyd is not challenged.
The other two men were presumably to be matched to Milton. Milton was 6 feet 4 inches tall and weighed 140 pounds. One man was 6 feet 3 inches tall and weighed 198 pounds. The other man was 6 feet 4 inches tall and weighed 175 pounds. Milton was wearing the unhemmed pants which he wore when arrested; his pants had been taken from him after he was arrested, and he was requested to change back into the unhemmed pants for the lineup.
Although the other men may have been darker in complexion and not as thin, the men in the lineup were sufficiently similar in appearance to Milton so that the lineup was not “unnecessarily suggestive.” (Stovall v. Denno, supra, 388 U.S. at p. 302 [18 L.Ed.2d at p. 1206]; italics added.)
In People v. Farley, 267 Cal.App.2d 214, 218 [72 Cal.Rptr. 855], the mere fact that others in the lineup were “taller” than the defendant did not make the identification unfair. Similarly, in People v. Lasiter, 265 [713] Cal.App.2d 361, 363, 366 [71 Cal.Rptr. 218], where all six men were of similar height and similarly garbed, the lineup was not unfair because only the defendant was of Anglo-Saxon extraction, the others being Latin-American extraction. (Compare People v. Menchaca, 264 Cal.App.2d 642, 644-645 [70 Cal.Rptr. 843].)
Wade itself provides examples of the types of suggestive lineups that the Wade rule was formulated to prevent: A six-man lineup consisting of only one Oriental, the defendant; one black-haired person among light-haired persons; a tall defendant with short men; a youthful defendant with men over 40 years of age. (United States v. Wade, supra, 388 U.S. 218, 232 [18 L.Ed.2d 1149, 1160, 87 S.Ct. 1926].) In Foster v. California (1969) 394 U.S. 440 [22 L.Ed.2d 402, 89 S.Ct. 1127], the defendant was nearly 6 feet tall, and placed in a lineup consisting of two others who were 5 feet 5 or 6 inches tall. In People v. Caruso, supra, 68 Cal.2d 183, 187, footnote 1, the defendant was 6 feet 1 inch tall, weighed 238 pounds, had a very dark complexion and dark wavy hair. None of the persons in the lineup approximated his size and not one had his dark complexion.
No such suggestiveness is found in the lineup in the instant case.
Milton contends, however, that the lineup is unfair because he was required to wear the trousers in which he was arrested, the right cuff of which was loose. We are, however, cited to no authority for the proposition that it is a denial of due process to require a suspect to wear the clothes in which he was arrested. Milton places great weight on the fact that he was asked to remove his trousers when arrested (and given other trousers) but that his trousers were returned to him before he was placed in the lineup. Whether a defendant is required to change clothes one time or twenty times is irrelevant to the issue whether it is unfair to require a defendant to appear in a lineup in the clothes he was wearing when arrested.
We recognize, of course, that a suspect might be dressed in such a striking outfit that to place him in a lineup with others not similarly garbed would be as unfairly suggestive as to place one Oriental in a lineup of all Caucasians. That is not the situation in the instant case. According to Milton’s testimony, when arrested he was wearing black pants, a T-shirt, and black shoes. His outfit was ordinary. There was no need for the police to match the outfits of everyone in the lineup anymore than the police were required to match the physical proportions of the other men with scientific exactitude.
Milton contends that requiring him to wear the trousers in which he was arrested was, in this particular situation, unfair, because witness “Foster’s memory with regard to [Milton] focused solely upon a pair of [714] pants with an unhemmed cuff.” This is a bald misstatement of the record, as is made clear from the description provided by Mrs. Foster, discussed above. It is true that Mrs. Foster conceded that it would be “a fair statement” that she remembered the pants worn by Milton more than anything else about him, but that concession hardly qualifies as a statement that her recollection was directed “solely” to his trousers.
Milton contends that the confrontation with witness McAfee was improperly suggestive. The contention is without merit. Milton was arrested at 2:30 or 3 p.m., and apparently was booked about 4 p.m. Shortly thereafter, between 4 p.m. and 5 p.m., McAfee was requested to come to the police station, where Milton was with a police officer. McAfee positively identified Milton as one of the two men who ran away from the bus.
The “single person showup” is not inherently unfair. (Stovall v. Denno, supra, 388 U.S. 293, 302; People v. Burns, supra, 270 Cal.App.2d 238, 246; People v. Singletary, 268 Cal.App.2d 41, 45 [73 Cal.Rptr. 855]; People v. Irvin, 264 Cal.App.2d 747, 759-760 [70 Cal.Rptr. 892]; People v. Smith, 263 Cal.App.2d 631, 636-637 [69 Cal.Rptr. 670]; People v. Romero, supra, 263 Cal.App.2d 590, 593.) Milton concedes that McAfee was brought to the jail shortly after Milton was arrested, and within several hours of the robbery. The police are not to be criticized because they attempted to establish an affirmative identification as promptly as possible. The sole grounds for Milton’s arrest was that he matched the description provided by the witnesses.4
It was in the interest of both Milton and the police to be confronted with a witness as promptly as possible. (See, Stovall v. Denno, supra, 388 U.S. 293, 302 [“Here was the only person in the world who could possibly exonerate Stovall. . . .”]; People v. Irvin, supra, 264 Cal.App.2d 747, 760 [“If innocent men had been apprehended should they await the assembling of a lineup, and the summoning of counsel, while the real perpetrators put more time, and presumably distance, between themselves and the focal point of the offense?”]; People v. Romero, supra, 263 Cal.App.2d 590, 593.)
When McAfee saw Milton at the police station Milton was “down to a T shirt.” However, McAfee also saw “a piece of material of a brownish orange color, a shirt or a sweat shirt or something like that.” Milton contends that the presence of the sweater or shirt was unnecessarily suggestive, because an orange brownish shirt or sweater was all that McAfee [715] could recall of Milton’s clothing, and because the police did not have in their possession at the time of Milton’s arrest an orangish brown sweater. The contention misstates the record. According to the Affidavit in Support of Search Warrant, and Police Property Report,5 when arrested the police took a gold-colored shirt in custody which Milton stated was the one he carried into the apartment. Further, in the Affidavit in Support of Search Warrant, McAfee provided the police with a detailed description of Milton, both as to his physical appearance and clothes.6
The confrontation between McAfee and Milton was not so suggestive as to deprive Milton of due process.
Finally, Milton challenges the competence of his attorney for not attempting to exclude the in-court identification of Milton, at the penalty trial, in connection with two alleged prior crimes, because the pretrial confrontation which preceded the in-court identification was improper.7 The contention is without merit. When the penalty trial was reached, Milton had been convicted of first degree murder and first degree robbery. Evidence was introduced to prove that he had committed a bus robbery in October 1966, a bus robbery in March 1966, a liquor store robbery in December 1966, and a service station robbery in August 1966.8
Even assuming that the testimony of one of the two witnesses to the December 1966 liquor store robbery and the testimony of each of the witnesses to the March and October 1966 bus robberies could have been excluded, the failure of Milton’s counsel to object cannot be said to have constituted conduct equivalent to “withdrawing a crucial defense from the case,” thus depriving him of effective assistance of counsel. (People v. Ibarra, supra, 60 Cal.2d 460, 464.)
Penalty Phase Prior Crimes—Sufficiency of Evidence
At the penalty trial, the prosecution attempted to prove that Milton or Floyd or both of them had committed other crimes. Milton challenges the sufficiency of the evidence to prove two of the crimes, a bus robbery with Floyd in March 1966 and another bus robbery in [716] October 1966. Evidence of such crimes, even though defendants were not charged or convicted of the crimes, is admissible at the penalty trial, but they must be proven beyond a reasonable doubt before the jury may consider them.9 (People v. Varnum, 70 Cal.2d 480, 485 [75 Cal.Rptr. 161, 450 P.2d 553]; People v. Durham, 70 Cal.2d 171, 187, fn. 15 [74 Cal.Rptr. 262, 449 P.2d 198].) However, on appeal our sole function is to determine whether or not substantial evidence was presented from which the jury could reasonably have found that defendant had committed the uncharged offenses. (People v. Durham, supra, at p. 189, fn. 16.)
March 1966 Bus Robbery—Mr. Raziano, a bus driver, provided the only evidence concerning the bus robbery in March 1966. He tentatively identified both Floyd and Milton in court, stating, “I think” the robbers were Floyd and Milton. Raziano testified that in January 1967 he had picked out Floyd and Milton from about 10 or 12 photographs which the police showed him, and that he had picked Floyd and Milton from a lineup of 10 or 12 men.
He conceded, however, on cross-examination that the lineup occurred 10 or 11 months after the robbery; that the whole incident on the bus took about a minute or two; that when the robbery occurred “I was worrying about myself”; that at the lineup he told the police he was not sure of his identification; that after being shown photographs, he told the police he was not sure of his identification, and that, as to his courtroom identification of Floyd and Milton, “I am not certain, no,” that Floyd or Milton or either of them robbed him. A special agent for the Rapid Transit District testified that Raziano had never identified Floyd or Milton from mug shots.
Although on redirect examination, he stated, “Yes, I am sure of one. . . . Mr. Floyd,” he did not commit himself as to Milton. Cross-examination by Milton’s attorney made clear his uncertainty as to Milton.
“Q But any Negro that would be sitting, about Milton’s complexion [717] and about the same height, as long as he is sitting near Floyd, you would say he is the man?
“A I imagine so.”
The lack of positive identification of Milton merely went to the weight of the foregoing testimony and not to its admissibility (People v. Gonzales, 68 Cal.2d 467, 472 [67 Cal.Rptr. 551, 439 P.2d 655]). In view of certain similarities between the March 1966 robbery and the robbery of which Milton was convicted at the guilt trial, we are not prepared to hold that Raziano’s testimony could have furnished no substantial evidence whatsoever from which the jury could have determined that Milton also committed the prior offense.10
Moreover, the record discloses that Milton’s counsel failed to object to the admission of this evidence at trial, failed to move to strike Raziano’s testimony, and failed to request an instruction admonishing the jury to disregard that testimony.11 Since Milton interposed no objection at trial to the introduction of the evidence of this prior offense, he cannot now raise the objection for the first time on appeal (People v. Varnum, supra, 70 Cal.2d 480, 486; People v. Teale, 70 Cal.2d 497, 519-520 [75 Cal.Rptr. 172, 450 P.2d 564]).
October 1966 Bus Robbery—The contention that the evidence is insufficient to prove that Milton robbed one Ross, a driver for the Los Angeles Rapid Transit District, in October 1966, is without merit. Ross testified that Milton “looked like the man” who held him up; that he “believe[d]” Milton was the man who held him up; that he was “saying he looks like the man.”
[718] Confession of Codefendant Floyd
Prior to the penalty trial, Milton’s counsel had moved to sever the trial on the ground that codefendant Floyd had made a confession to a psychiatrist, Dr. Tweed, which implicated Milton. The court denied the motion, but instructed Floyd’s counsel and the prosecutor to admonish Tweed to delete all references to Milton and to testify only on those matters pertaining to the possibility of Floyd’s rehabilitation. Milton’s counsel suggested that it would be impossible effectively to delete such testimony, and requested the court to review Tweed’s report, but the court indicated that such a reading would be premature, stating that “I want to meet this issue clear-cut at the time I am confronted with it.”
Floyd did not testify at either the guilt or penalty trials. At the penalty trial, Dr. Tweed related to the jury Floyd’s confessions to Tweed that he had robbed and shot the busdriver. The point of the testimony was to show that Floyd did not intend to shoot the busdriver, but that “all of a sudden the gun went off.” At no time did Tweed use Milton’s name in relating Floyd’s confession. However, during Tweed’s examination, the following testimony was elicited:
“Q [by Floyd’s counsel]: Did he [Floyd] say where he had gotten the gun?
“A Yes, he said he had gotten the gun from some friend.
“Q Did he say where he was taking it?
“A He stated he was taking it to a relative of this friend from whom he had gotten the gun.”
Milton’s counsel did not object to the foregoing testimony. However, after Tweed was excused, and in the judge’s chambers, Milton’s counsel requested a mistrial on the penalty phase, on the ground that the only possible inference from Tweed’s testimony was that Floyd had obtained the gun from Milton, since other evidence disclosed that the gun was found in the apartment of Milton’s half-brother, where defendants had been apprehended.
The court denied the motion, but subsequently instructed the jury “that the psychiatrist’s testimony during this penalty trial which disclosed defendant’s statements should be considered only for the purpose of exposing the information upon which the psychiatrist based his opinion [regarding Floyd’s rehabilitation] and not as evidence of the truth of the statements.”
In Bruton v. United States (1968) 391 U.S. 123, 129-130 [20 L.Ed.2d 476, 481-482, 88 S.Ct. 1620], the Supreme Court “held that the intro[719] duction into evidence of a codefendant’s extrajudicial statement which inculpates the defendant violates the defendant’s Sixth Amendment right to confront the witnesses against him even though the jury is instructed not to consider the statement as evidence against him.” (People v. Flores, 68 Cal.2d 563, 568 [68 Cal.Rptr. 161, 440 P.2d 233].) However, the court in Bruton made it clear that not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; the challenged evidence must present a substantial risk that the jury will ignore the instruction. (391 U.S. at p. 135 [20 L.Ed.2d at p. 484].) Accordingly, in Flores, supra, we refused to overturn a conviction where the inadmissible evidence provided, at most, only a tenuous basis for an inference of defendant’s guilt, and other evidence overwhelmingly demonstrated defendant’s culpable knowledge. (68 Cal.2d at p. 568; see also Harrington v. California, 395 U.S. 250 [23 L.Ed.2d 284, 89 S.Ct. 1726].)
Prior to the Bruton decision, we had recognized in People v. Aranda, 63 Cal.2d 518, 530 [47 Cal.Rptr. 353, 407 P.2d 265], that the introduction of such statements could be prejudicial and that a mere instruction to the jury to “disregard” the confession as to the codefendant might be inadequate. Consequently, we established alternative procedures for situations in which the prosecution proposes to introduce the extrajudicial statement of one codefendant which implicates another codefendant. If the prosecution wishes a joint trial “all parts of the extrajudicial statements implicating any codefendants” must be “effectively deleted without prejudice to the declarant.”
Milton contends that Aranda and Bruton apply to both the penalty and guilt phases of a criminal proceeding, and that Aranda and Bruton apply whether the incriminating statement is introduced by the prosecution or, as in the instant case, by a codefendant. He further contends that the trial court erred in denying his motion for severance at the penalty trial. We agree that Aranda and Bruton apply to the penalty phase of a criminal proceeding. The importance of the right to timely cross-examination has been sufficiently emphasized by this court and the United States Supreme Court and requires no prolonged discussion. (See, e.g., Barber v. Page (1968) 390 U.S. 719, 721 [20 L.Ed.2d 255, 258, 88 S.Ct. 1318]; Pointer v. Texas (1965) 380 U.S. 400, 404 [13 L.Ed.2d 923, 926, 85 S.Ct. 1065]; People v. Green, 70 Cal.2d 654, 664-665 [75 Cal.Rptr. 782, 451 P.2d 422]; People v. Johnson, 68 Cal.2d 646, 651-652 [68 Cal.Rptr. 599, 441 P.2d 111]; People v. Boggs, 255 Cal.App.2d 693, 702-703 [63 Cal.Rptr. 430] [assuming the applicability of Aranda and Bruton to the penalty phase].)
[720] At least where one defendant makes a timely objection to the introduction of the extrajudicial statement of a codefendant, we can see no reason why Aranda and Bruton should not apply to such statements when it is the codefendant, rather than the prosecution, who seeks to introduce the statement. To hold that the interests of codefendants in a joint trial—especially a joint penalty trial—are identical is to defy reality. Frequently, as in the instant case, one defendant attempts to show that he is less, or his codefendant more, blameworthy, in the hope of avoiding the death penalty. (Cf. People v. Chacon, 69 Cal.2d 765, 775 [73 Cal.Rptr. 10, 447 P.2d 106].)
The contention that, under Aranda, the trial court was required to grant Floyd and Milton separate penalty trials is without merit. The trial court has full discretion to determine a motion for severance, and that discretion will not ordinarily be disturbed by a reviewing court. (People v. Clark, 62 Cal.2d 870, 883 [44 Cal.Rptr. 784, 402 P.2d 856]; People v. Gant, 252 Cal.App.2d 101, 112 [60 Cal.Rptr. 154].) Aranda makes clear that a separate trial is required only if “all parts of the extrajudicial statements implicating any codefendants” are not or cannot be “effectively deleted without prejudice to the declarant.” (63 Cal.2d at p. 530; see also, People v. Massie, 66 Cal.2d 899, 918 [59 Cal.Rptr. 733, 428 P.2d 869].) The testimony complained of did not relate to the question of rehabilitation, the subject of Dr. Tweed’s testimony, and could easily have been deleted.
However, although defendants were not entitled to a separate penalty trial, Milton did have a right, under Aranda, to exclude any portions of Floyd’s admission which incriminated Milton. The question arises whether or not Milton waived that right by failing to object to the admission of Dr. Tweed’s testimony regarding Floyd’s statements to him.
We have seen that the court previously had instructed counsel to admonish Tweed to delete all references to Milton. Further, the court indicated that it would meet the issue regarding the implications of Tweed’s testimony as deleted, “at the time I am confronted with it.” Thus, Milton’s-counsel was forewarned that at the trial, Tweed might be asked certain questions which could implicate his client. Nevertheless, although counsel did object to various questions asked of Tweed, he failed to object to the questions “Did he [Floyd] say where he had gotten the gun?” and “Did he say where he was taking it?” Since these questions clearly had no relevance to the subject of Floyd’s rehabilitation, an objection could have been made on that ground, and the challenged testimony excluded without disclosing to the jury that the testimony would have implicated Milton.
However, we need not rely solely upon counsel’s failure to. object [721] to the introduction of this evidence, for we have concluded that any violation of the principles of Bruton or Aranda was harmless error beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065].) As we stated in People v. Flores, supra, 68 Cal.2d 563, 568, footnote 5, “The improper admission into evidence of a codefendant’s extrajudicial statement does not automatically require reversal of the defendant’s conviction.”
In relating Floyd’s confession, Tweed made no mention of Milton by name, and in fact did not even indicate that Floyd spoke of an accomplice. Although the jury conceivably could have inferred that Milton was the “friend” who, according to Floyd, gave Floyd the gun, we cannot conclude that any substantial risk was thereby created that the jury would believe Floyd, ignore the court’s instruction, and sentence Milton to death. Other evidence was admitted to show that on at least three prior occasions Milton had committed armed robbery; on two such occasions he was accompanied by Floyd. Seen in this light, the admission of evidence that Milton possessed a gun and gave it to Floyd cannot be characterized as “substantial error” (People v. Hines, 61 Cal.2d 164, 168-170 [37 Cal.Rptr. 622, 390 P.2d 398]), which reasonably may have influenced the jury to impose the death penalty.
Prosecutor’s Argument
Floyd and Milton contend that the prosecutor committed prejudicial misconduct in asking the jury to return the death penalty based on considerations of retribution. The prosecutor’s argument covered some 28 pages of transcript. Among his statements were: “Don’t forget about this man here, Mr. Hartzel, who is now six feet under. He cries out for justice and Mrs. Hartzel, his wife, you think a day will pass the rest of her life when she won’t be reminded of the horror of what happened to her husband and suffer very much for it? . . .
“The question is what would be equal punishment for that act. We are not only talking about avenging Mr. Hartzel’s death, but Mrs. Hartzel. A great, great, an enormous loss. Sometimes it is too easy to forget about the victim and his loved ones. . . .
“Should these defendants be permitted to live like that [in the prison where it ‘is not that bad’], we should say that Mr. Hartzel would never eat another meal, never see his wife again, never listen to music again, never see another sunrise.”
Although this court has never held that it is improper for a prosecutor in closing argument in a penalty trial to ask the jury to impose the death penalty for reasons of retribution or vengeance, we have stated in other [722] contexts that “There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution.” (In re Estrada, 63 Cal.2d 740, 745 [48 Cal.Rptr. 172, 408 P.2d 948].) And, in People v. Love, 53 Cal.2d 843 [3 Cal.Rptr. 665, 350 P.2d 705], where the issue was the admissibility at the penalty trial of a photograph indicating that the victim had died in great pain, we stated, in finding the photograph prejudicially inflammatory: “Proof of such pain is of questionable importance to the selection of penalty unless it was intentionally inflicted.3” And in footnote 3, it was pointed out: “Pain unintentionally inflicted is relevant only to the extent that criminal penalties are designed to exact retribution for the evil done by criminals. Whatever may have been the fact historically, retribution is no longer considered the primary objective of the criminal law [citation] and is thought by many not even to be a proper consideration [citations]. Granted, however, that retribution may be a proper consideration, it is doubtful that the penalty should be adjusted to the evil done without reference to the intent of the evildoer. Modern penology focuses on the criminal, not merely on the crime. [Citations.]” (53 Cal.2d at pp. 856-857, fn. 3; italics added.)
Although the prosecutor asked the jury to consider retribution in deciding whether to impose the death penalty, he also discussed other pertinent factors, including defendants’ commission of other crimes, their premeditation and intent to kill, their lack of remorse, and their amenability to rehabilitation. In these circumstances, the prosecutor’s remarks concerning the widow of the slain busdriver did not constitute misconduct. (See People v. Garner, 57 Cal.2d 135, 156 [18 Cal.Rptr. 40, 367 P.2d 680]; People v. Love, 56 Cal.2d 720, 731 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809].)
Furthermore neither counsel objected to the statements at the trial, and “Misconduct of the prosecuting attorney may not be assigned as error on appeal if it has not been assigned at the trial unless, the case being closely balanced and presenting grave doubt of the defendant’s guilt, the misconduct contributed to the verdict or unless the harmful results of the misconduct could not have been obviated by a timely admonition to the jury.” (People v. Varnum, supra, 70 Cal.2d 480, 488 [75 Cal.Rptr. 161, 450 P.2d 553].) Here the remarks of the prosecutor fall within the general rule and not within either of the exceptions.
Witherspoon—Exclusion of Jurors for Cause
Defendants challenge the exclusion under section 1074, subdivision 8, of the Penal Code of certain jurors, based on those jurors’ opposi[723] tion to the death penalty. Witherspoon v. Illinois (1968) 391 U.S. 510, 522 [20 L.Ed.2d 776, 784, 88 S.Ct. 1770], holds that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding venirmen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” The court excepted from this ruling prospective jurors who “made unmistakably clear . . . that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them . . . .” (Id., at p. 522, fn. 21 [20 L.Ed.2d at p. 785].)
We must then determine whether all of the excused jurors made it “unmistakably clear” that he or she would automatically vote against the death penalty regardless of the evidence in the case. Of course, as we explain infra, our determination in the instant case must be made on the basis of the voir dire examination of the entire panel of veniremen conducted during the time the particular veniremen were present in the courtroom and until the time they were excused for cause, including all questions posed and answers given, and additionally all of the circumstances in which each colloquy took place. (People v. Varnum, supra, 70 Cal.2d 480, 492-493].)
Defendants specifically challenge the exclusion of jurors Rogers, Willis, Bishop and Polizzi. We have independently reviewed the voir dire of the other six jurors excluded under section 1074, subdivision 8, of the Penal Code, and find that they were properly excluded under the applicable Witherspoon rules.12
[724] (1) Juror Rogers. We have set forth in an appendix that portion of the transcript pertaining to the voir dire of jurors Rogers and Willis. As to Miss Rogers, the court had inquired whether “there is any juror that entertains such a conscientious opinion that he would under no circumstances vote [725] for the death penalty,” and Miss Rogers replied “I wouldn’t vote for the death penalty.”
On voir dire, Miss Rogers further stated that in her opinion she could not vote for the death penalty no matter how heinous the crime. However, defense counsel then posed the extreme hypothetical example of a defendant who had killed 10 women and children, had stated that he would kill again if released, and had offered to disclose the location of the bodies of his other victims for $100 each. Miss Rogers replied that she did not “know about that type of person; I never heard,of that type of person.” Upon further questioning along these lines, Miss Rogers agreed that as to such a hypothetical case, the death penalty was a question of “degree,” and that she would “have to get all the facts,” before deciding whether or not to impose it.
Subsequently, Miss Rogers was asked by the prosecutor whether she would be willing to vote for a verdict of death under any particular circumstances, and she replied “I can’t think of any circumstances now.” However, once again she was presented with the hypothetical-example described above, and was asked whether she would vote for death in that case. Miss Rogers replied “I don’t know if I would or not. I really can’t say.”
Finally, the prosecutor addressed the jurors as a group, explained that the jury had absolute discretion to determine whether or not a proper case existed to justify the death penalty, and then asked the jury whether they would have the courage to vote for a verdict of death if they determined that this was a proper case. Miss Rogers replied “No, I wouldn’t,” and was excused by the court.
Although the instant trial preceded the decision in Witherspoon, the standards which the trial court imposed comported fully with those announced in Witherspoon. Therefore, we could base our decision as to Miss Rogers upon the rule that “Where a prospective juror gives conflicting answers to questions relevant to his impartiality, the trial court’s determination as to his state of mind is binding upon an appellate court. [Citations.]” (People v. Linden, 52 Cal.2d 1, 22 [338 P.2d 397].)
Moreover, we have concluded Miss Rogers made it unmistakably clear that under no circumstances would she impose the death penalty, and, therefore, was properly excused.
(2) Juror Willis. In response to the question whether there was “any juror that entertains such a conscientious opinion that he would under no circumstances vote for the death penalty,” Juror Willis replied “I am. . . . I don’t believe I could send a man to death. I don’t believe I could vote to go to the gas chamber.”
[726] Subsquently, defense counsel examined Miss Rogers on voir dire and, as we noted above, elicited her testimony that she could not vote for the death penalty in any situation, although as to the extreme hypothetical example posed to her, she “really didn’t know,” since “it depends upon the degree,” and “I would have to get all the facts.” Thereupon Juror Willis agreed that his answers to the questions posed to Miss Rogers would be “substantially the same” as hers.
Finally, Juror Willis was told that the state sought the death penalty for a killing which occurred during an alleged robbery. Willis stated that he was opposed to sitting on the case for the reason that the death penalty was sought, stating further that “I don’t think I would be fair to the State. I don’t think it would be fair to the State for me to sit on it.” When asked if he had a bias or prejudice in the proceeding, Willis replied, “I am against capital punishment, yes.” Thereupon, Juror Willis was excused.
We have previously held in People v. Hill, 70 Cal.2d 678, 701, footnote 3 [76 Cal.Rptr. 225, 452 P.2d 329], that a juror was properly excluded who answered “I believe so,” in response to the question whether the venireman would be unable to return a verdict imposing the death penalty regardless of the evidence.
Moreover, by his initial testimony and by adopting the answers previously given by Miss Rogers, Juror Willis made it unmistakably clear that under no circumstances would he impose the death penalty and, therefore, we conclude that Juror Willis was properly excused.
(3) Juror Bishop. Juror Bishop was asked: “Can you imagine a case in which you would be willing to vote for the death penalty, or is your state of mind that you would be unlikely in any situation to vote for death?” He answered: “I would be unlikely in any situation to vote for death.” He was then asked, “Well, Mr. Bishop, in a proper case, would you impose the death penalty?” He then answered, “No, I would not.”
We have heretofore discussed the ambiguity inherent in the phrase, “proper case.” (People v. Teale, supra, 70 Cal.2d 497, 514-515; People v. Varnum, supra, 70 Cal.2d 480, 494-495.) However, in Teale and Varnum, we held that a juror could be properly excluded, based on a response to a question using the phrase, “proper case,” where the court has, during the voir dire proceedings, “made clear to the assembled panel that the jury would in its sole discretion decide whether the case before it was a ‘proper case’ for the infliction of the death penalty.” (70 Cal.2d at [727] p. 516.) In the instant case, the court explained to the assembled veniremen: “The law imposes neither death nor life imprisonment, but presents the two alternatives in the absolute discretion of the jury. The Legislature has formulated no rules to control the exercise of the jury’s decision.” In these circumstances, juror Bishop was properly excluded.
(4) Juror Polizzi. Juror Polizzi stated: “. . . I don’t believe in the death penalty.” She was questioned further by the court:
“Q ... In a proper case are you telling the Court that you would not impose the death penalty?
“A Yes.
“Q Under any circumstances?
“A (Nods in the affirmative.) ”
Juror Polizzi was properly excused.
Witherspoon—Exclusion of Jurors
by Peremptory Challenges
Defendants contend that the use by the prosecution of peremptory challenges to exclude jurors who expressed negative views concerning the death penalty is improper under In re Anderson, 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117]. However, a different question was raised in Anderson, where the Attorney General had argued that any Witherspoon error was nonprejudicial since the prosecution had sufficient peremptory challenges remaining to remove all jurors improperly excluded for cause. We rejected this argument, stating that we could not engage in conjecture that the prosecutor would have used his peremptory challenges to excuse such jurors. (69 Cal.2d at p. 620.)
Similarly, we cannot engage in conjecture regarding the prosecutor’s reasons for exercising some of his peremptory challenges to excuse some jurors who had reservations concerning the death penalty. Instead, we must assume “that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged.” (Swain v. Alabama, 380 U.S. 202, 223 [13 L.Ed.2d 759, 774, 85 S.Ct. 824].) Swain held that the prosecutor could properly exclude all Negroes from a particular jury, regardless of the factual basis for his belief that such jurors, either as individuals or as a class, might be biased in the particular case to be tried. As the court stated, “In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons [728] for the exercise of his challenges in any given case.” (380 U.S. at p. 222 [13 L.Ed.2d at p. 773].)
In any event, the voir dire examination of the jurors fails to establish that any juror was peremptorily challenged solely because of his scruples against the death penalty.
Other Contentions
Defendant’s further contentions concerning the constitutionality of the death penalty and the denial of equal protection in imposing more severe punishment for murder than for attempted murder are without merit.
The judgments are affirmed in their entirety.
McComb, J., Mosk, J., and Sullivan, J., concurred.
APPENDIX
VOIR DIRE Examination of Veniremen Rogers and Willis
“The Court: If there is any juror that entertains such a conscientious opinion that he would under no circumstances vote for the death penalty, will you so indicate? “Miss Rogers, what is your feeling?
“Miss Rogers: I wouldn’t vote for the death penalty.
“Q By the Court: Do you have any conscientious objection to finding the defendants guilty under those circumstances, is that what you are telling the Court? “A Yes.
“The Court: Who else?
“Mr. Willis: I am.
“Q By the Court: Mr. Willis?
“A Yes.
“Q What do you have to say?
“A I don’t believe I could send a man to death. I don’t believe I could vote to go to the gas chamber.
6<
“By Mr. Lenoir: Miss Rogers, by saying you don’t believe that you could vote for the death penalty, you’re not saying you couldn’t find a person guilty of an offense? “A No, I am not saying that.
“Q And you are not saying that, either, are you, Mr. Willis?
“A I am not saying it.
<6
“Mr. Boags: Miss Rogers, it is your belief that no matter what the person did that you could not vote the death penalty?
“Miss Rogers: Yes, that is my opinion.
“Q By Mr. Boags : No matter how heinous the crime?
“A Yes, sir.
“Q You cannot think of a situation where you could say the death penalty would be a proper one?
“A No.
“Q What if—I would like to give you an example. Say, if a person is proven he-[729] killed 10 persons, children and women, and very heinous-type crimes. Then this person, after he was arrested, said, ‘Yes, I did it and if released I will do it again, and that besides the 10 I killed, for every $100 that you give me, I will show you where the body of another is that I killed.’ And if all those facts are proven and the man testified in court substantially the same way, do you think you could impose the death penalty on that person?
“A I don’t know about that type of person. I never heard of that type of person.
“Q Well, if you were sitting on a case like that, do you think you could impose it?
“A I really don’t know.
“Q What I am getting at is this. In the abstract, you know, it is easy to discuss these subjects about death and life, and what I believe is that it is always a question of degree.
“A That is right.
“Q And what I am trying to find out from you is if you agree with me that the death penalty is a question of degree?
“A Yes.
“Q And would it be fair to say, then, if the proper case was presented to you that you possibly could vote the death penalty, is that right?
“A All I can say is it depends on the degree.
“Q If the proper case was presented, you would vote it?
“A I don’t know. I would have to get all the facts.
“Q Right. I would assume that.
“May I have a moment, your Honor?
“(Pause)
“Mr. Boags: Mr. Willis, you have heard the questions I have just asked, is that correct, sir?
“Mr. Willis: Yes, sir.
“Q Would it be fair to say if I asked you the same questions, your answers would be substantially the same?
“A Yes.
“Q Also, with you it would be a question of degree, is that right?
“A Sure.
“Mr. Bugliosi: May I briefly inquire of the jurors?
“The Court: Yes.
“Mr. Bugliosi: Mr. Willis and Miss Rogers, before my colleague, Mr. Boags began questioning you—he has a rather prolific imagination—I believe you said that you both were opposed to the death penalty, is that correct?
“Miss Rogers: Yes.
“Mr. Willis: Yes.
<6
“Mr. Bugliosi: Miss Rogers, you realize that the People in this case are asking for the death penalty? You understand that?
“Miss Rogers: I do now. I didn’t know it, but I do now.
“Q We are asking for the death penalty in this case, and I believe you indicated you are basically opposed to the death penalty, is that correct?
“A That is correct.
“Q The murder in this case involves an alleged robbery and a killing during the commission of the robbery. Now, because you are opposed to the death penalty and because the People are asking for the death penalty in this case, would you rather not sit as a juror?
“A Yes, I would rather not.
<<
“Mr. Bugliosi: Miss Rogers, would you be willing to vote for a verdict of death under any particular circumstances?
“Miss Rogers: I can’t think of any .circumstances now.
[730] “Q So there are no circumstances that enter your mind which would conceivably cause you to vote for a verdict of death, is that correct?
“A No.
“Mr. Bugliosi: Your Honor, I will make a motion to excuse Miss Rogers for implied bias.
“Mr. Lenoir: Object to that. The lady said she could not think of any circumstances. She is not saying there are no circumstances.
“The Court: The motion will be denied.
“Mr. Bugliosi: What about, Miss Rogers, this ridiculous, preposterous, absurd hypothetical by Mr. Boags about an individual killing 10 babies and then saying, T will show you where another baby is for every hundred dollars you give me.’ Would you vote for a death penalty in a case like that?
“Mr. Lenoir: Object to the question.
“The Court: The form of the question is improper. The objection will be sustained.
“Mr. Bugliosi: Would you vote for the death penalty in a case like that, ma’am?
“Mr. Lenoir: Object to that.
“The Court: The question is ambiguous. The objection is sustained.
“Mr. Bugliosi: If you do have a factual situation, Miss Rogers, wherein a man killed 10 children, and when they found the man, when they apprehended him, he said, ‘For each $100 you give me I will show you where another child is buried,’ would you vote for a verdict of death in a case like that?
“Mr. Lenoir: Object to that on the ground it is an improper question, asking the juror to prejudge a set of facts.
“The Court: Objection sustained.
“Mr. Bugliosi: Your Honor, I believe that it is identically or substantially the same question asked by defense counsel, Mr. Boags.
“The Court: Do you want to have the record reread?
“Mr. Bugliosi: Yes, your Honor.
“Mr. Lenoir: I will withdraw the objection in the interest of time.
“The Court: You may proceed. Repeat the question, please.
“(Record read by the reporter.)
“Miss Rogers : I don’t know if I would or not. I really couldn’t say.
“Mr. Bugliosi: Wasn’t your first answer, Miss Rogers, you don’t think you would?
“Mr. Lenoir: I will object to that as misleading.
“Mr. Bugliosi: I did,hear her say something.
“The Court: The reporter doesn’t have any answer.
“Mr. Bugliosi: What about you, Mr. Willis? I take it that you are also opposed to the death penalty?
“Mr. Willis: Yes.
“Q Would you rather not sit on this case as a juror?
“Mr. Boags: Object to that as an improper question.
“The Court: Objection sustained.
“Mr. Bugliosi: This case, Mr. Willis, involves a killing during the perpetration of an alleged robbery, because the People are asking for the death penalty in this case. Are you opposed to sitting on the case?
“Mr. Willis: For that reason only.
“Q For the reason that we are asking for the death penalty? You do not want to ask for it in this case?
“A I don’t think I would be fair to the State. I don’t think it would be fair to the State for me to sit on it.
“The Court: Then you are indicating to the Court you do have a bias or prejudice in this proceeding?
[731] “Mr. Willis: I am against capital punishment, yes.
“Mr. Bugliosi: People would make a motion, your Honor, to excuse Mr. Willis on the ground of implied bias.
“The Court: The juror will be excused.
“Mr. Boags: For the record, your Honor, may I object?
“Mr. Lenoir: Both defendants object, your Honor.
“The Court: Objection is overruled.
«
“Mr. Bugliosi: Miss Rogers, getting back'to you, did you hear Mr. Willis’ remark that because of his opposition to the death penalty he did not feel he could give the prosecution a fair trial? Did you hear him say that?
“Miss Rogers: Yes.
“Q Do you feel basically the same way?
“A I could give a fair trial. Just because I opposed—I think I could be fair.
“Q Well, you say that you could be fair. I can’t ask you to prejudge the facts because the trial hasn’t started, you haven’t heard any of the evidence, but inasmuch as the prosecution is asking for the death penalty, and the defense, if it ever goes to the penalty trial, will obviously be asking you to come back with the verdict of life, as opposed to death, do you feel right now you are inclined in the direction of life?
“A Yes, I would be.
“Q So even before you have heard any of the evidence, you are biased, if anything, in favor of life?
“A That is right.
“Mr. Bugliosi: I make a motion, your Honor, under Section 1074, Subdivision 8 of the Penal Code, on the ground of implied bias.
“Mr. Lenoir: Objection. She said she could be fair.
“The Court: Objection sustained.
«
“Mrs. Bowman, if you thought that this was a proper case for the imposition of the death penalty, would you personally be willing, and would you personally have the courage to vote for a verdict of death?
“Mrs. Bowman: Yes.
“Mr. Bugliosi: Mr. West, how about you, sir?
“Mr. West: Yes, sir.
“Mr. Bugliosi: Mr. Smith?
“Mr. Smith: Yes.
“Mr. Bugliosi: Miss Rogers?
“Miss Rogers: No.
“Q Even if you thought it was a proper case,-you would not have the courage to vote for a verdict of death?
“A. No, I wouldn’t.
“Mr. Bugliosi: I make a motion, your Honor, to excuse the juror on the ground of implied bias.
“The Court: The motion is granted.
“Mr. Boags: Will the record reflect we are objecting?
“The Court: Objection is overruled.”
Footnotes
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